This appeal concerns the claim of A made against R for damages for negligence in relation to a total abdominal hysterectomy and bilateral salpingo-oophorectomy (TAH & BSO) performed on 25 March 2008. (paragraph 1)
As a consequence of the operation A suffered nerve damage and now suffers serious and permanent pain, described by pain experts as Chronic Post Surgical Pain (“CPSP”). There is no suggestion that the operation was performed negligently. A’s case is that she was not adequately warned of the risk of pain in relation to the operation. (paragraph 2)
Following trial… J dismissed the claim, finding that the respondent was not negligent and that in any event causation had not been established. Both those findings are now appealed. (paragraph 3)
The operation was performed, non-negligently, on 25 March 2008. (paragraph 12)
Following the surgery, it became apparent that A had sustained nerve damage as a result of which she suffered from pain in her abdominal wall which is “significantly different in type to the pain she was suffering prior to her operation”. Essentially, as explained by the pain experts, she has developed what is now recognised as CPSP. (paragraph 13)
[consideration of Chester v Afshar]
…I would reject all three grounds of appeal and dismiss the appeal. (paragraph 79)
… there is no reasonable interpretation of the decision of the House of Lords in Chester which justifies extending liability for negligent failure to warn of a material risk of a surgical operation to a situation where, as here, it has been found as a fact that, if she had been warned of the risk, A would still have proceeded with the operation as and when she did. (paragraph 92)
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